ITO, Meerut V. Mohd Iliyas, Meerut

ITA 5537/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4177 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 27-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALKA GAUTAM
• Assessee Lawyers: V K GOEL
• Keywords: Assessment record
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : E : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.5537/DEL/2016 ASSESSMENT YEAR : 2007-08 ITO, WARD-1(4), MEERUT. VS. MOHD ILIYAS, MOHUDINPUR LALSANA, PARGANA & TEHSIL, MEERUT. PAN: ACXPI5786J (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI V.K. GOEL, ADVOCATE DEPARTMENT BY : MS ALKA GAUTAM, SR. DR DATE OF HEARING : 03.01.2018 DATE OF PRONOUNCEMENT : 04.01.2018 ORDER PER R.S. SYAL, VP: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE CIT(A) ON 08.08.2016 IN RELATION TO THE ASSE SSMENT YEAR 2007-08. ITA NO.5537/DEL/2016 2 2. THE ONLY GRIEVANCE PROJECTED THROUGH VARIOUS GRO UNDS IS AGAINST THE QUASHING OF THE ASSESSMENT ORDER PASSED U/S 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT) FOR NON-IS SUANCE OF NOTICE U/S 143(2) OF THE ACT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSING OFFICER INITIATED PROCEEDINGS BY WAY OF NOTICE U/S 148 AND ADDED A SUM OF RS.53,07,000/- IN AN EX PARTE ASSESSMENT ORDER, BEING, INCOME FROM `CAPITAL GAINS ON ACCOUNT OF SALE OF LAND WHICH TH E ASSESSEE HAD CLAIMED TO BE OUTSIDE 8 KMS. OF MUNICIPAL LIMIT OF MEERUT A ND HENCE EXEMPT FROM TAX. THE ASSESSMENT ORDER WAS PASSED U/S 147 READ W ITH SECTION 144 OF THE ACT. THE LD. CIT(A) SET ASIDE THE ASSESSMENT ORDER ON THE GROUND THAT NO NOTICE U/S 143(2) WAS EVER ISSUED TO THE ASSESSEE. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E RELEVANT MATERIAL ON RECORD. IT IS OBSERVED FROM THE IMPUGNED ORDER THAT THE ASSESSEE, VIDE ITS LETTER DATED 12.06.2014 SUBMITTED BEFORE THE AS SESSING OFFICER THAT THE RETURN FILED ON 29.04.2014 SHOULD BE CONSIDERED IN RESPONSE TO NOTICE U/S ITA NO.5537/DEL/2016 3 148 OF THE ACT. THIS POSITION WAS ASCERTAINED BY T HE LD. CIT(A) ON INSPECTING THE ASSESSMENT RECORD, WHO FURTHER RECOR DED THAT NO NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE. NO MATERIAL HAS BEEN PLACED BEFORE US TO DEMONSTRATE THAT THE FINDINGS RECORDED IN THE IM PUGNED ORDER, NAMELY, THAT THE ASSESSEE FILING THE RETURN ON 29.04.2014 I N RESPONSE TO NOTICE U/S 148 AND NON-SERVICE OF NOTICE U/S 143(2) BY THE ASS ESSING OFFICER, ARE NOT CORRECT. THE FURTHER FACT THAT THE ASSESSMENT ORDE R HAS BEEN PASSED U/S 144 OF THE ACT CORROBORATES THE NON-ISSUANCE OF NOTICE U/S 143(2) TO THE ASSESSEE. IT IS A SETTLED LEGAL POSITION THAT NOTIC E U/S 143(2) OF THE ACT MUST BE ISSUED BEFORE MAKING AN ASSESSMENT U/S 147 OF TH E ACT. THE HON'BLE DELHI HIGH COURT IN PRINCIPAL CIT VS. SILVER LINE & ANR. (2016) 383 ITR 455 (DEL) , HAS HELD THAT A REASSESSMENT ORDER CANNOT BE PASS ED WITHOUT COMPLIANCE WITH THE MANDATORY REQUIREMENT OF NOTICE BEING ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE U/S 143(2) OF THE ACT. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE KERALA HIGH COURT IN TRAVANCORE DIAGNOSTICS PVT. LTD. VS. ACIT (2017) 390 ITR 167 (KER). IN VIEW OF THE AFORESTATED LEGAL POSITION, WE ARE SATISFIED THAT THE LD. CIT(A ) ADOPTED AN ITA NO.5537/DEL/2016 4 UNIMPEACHABLE VIEW IN SETTING ASIDE THE ASSESSMENT ORDER FOR NON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.01.20 18. SD/- SD/- [SUDHANSHU SRIVASTAVA] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 04 TH JANUARY, 2018. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.